Citation Nr: 0117132
Decision Date: 06/26/01 Archive Date: 07/03/01
DOCKET NO. 96-31 732 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of entitlement to service-connection for post-
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his mother
ATTORNEY FOR THE BOARD
M. Overly, Associate Counsel
INTRODUCTION
The veteran had active military service from June 29, 1965 to
June 27, 1969.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from December 1995 and March 1996 rating decisions
that denied a claim of entitlement to service connection for
PTSD.
A claim of service connection was previously denied by the
Board in August 1992. By rating decisions thereafter
rendered by the RO in December 1995 and March 1996, service
connection for PTSD was again denied. The veteran appealed
those rating decisions and in September 1999 the Board
remanded the matter for additional development. The RO has
now returned the case for further appellate processing.
FINDINGS OF FACT
1. The Board denied a claim of entitlement to service-
connection for PTSD in August 1992.
2. The evidence received since the August 1992 denial, by
itself or in connection with the evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the veteran's claim.
CONCLUSION OF LAW
New and material evidence has been received to reopen a claim
of service connection for PTSD. 38 U.S.C.A. §§ 1110, 5108,
7104 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.156, 3.303,
20.1100 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that he has PTSD caused by his Vietnam
experiences and that he should, therefore, be granted service
connection.
Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated thereby. 38 U.S.C.A. § 1110 (West 1991); 38
C.F.R. § 3.303(a) (2000). Service connection is also
warranted where the evidence shows that a chronic disability
or disorder has been caused or aggravated by an already
service-connected disability. 38 C.F.R. § 3.310 (2000);
Allen v. Brown, 7 Vet. App. 439 (1995). When disease is
shown as chronic in service, or within a presumptive period
so as to permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date
are service connected unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b) (2000).
The Board previously denied the veteran's claim of service
connection for PTSD in an August 1992 decision.
Consequently, the present claim of service connection may be
considered on the merits only if "new and material
evidence" has been submitted since the time of the prior
adjudication. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp.
2000); 38 C.F.R. § 3.156 (2000).
The Board must consider the question of whether new and
material evidence has been received because it goes to the
Board's jurisdiction to adjudicate the claim de novo. See
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If
the Board finds that no such evidence has been offered, that
is where the analysis must end, and what the RO may have
determined in that regard is irrelevant. Id. Further
analysis, beyond consideration of whether the evidence
received is new and material, is neither required nor
permitted. Id. at 1384. See also Butler v. Brown, 9 Vet.
App. 167, 171 (1996).
In September 1998, the United States Court of Appeals for the
Federal Circuit issued an opinion which overturned the test
for materiality established by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) in Colvin v.
Derwinski, 1 Vet. App. 171, 174 (1991) (the so-called
"change in outcome" test). See Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998). The Federal Circuit in Hodge mandated
that materiality be determined solely in accordance with the
definition provided in 38 C.F.R. § 3.156(a).
Under § 3.156(a), evidence is considered "new" if it was
not of record at the time of the last final disallowance of
the claim and if it is not merely cumulative or redundant of
other evidence that was then of record. See also Struck v.
Brown, 9 Vet. App. 145, 151 (1996); Blackburn v. Brown, 8
Vet. App. 97, 102 (1995); Cox v. Brown, 5 Vet. App. 95, 98
(1993). "Material" evidence is evidence which bears
directly and substantially upon the specific matter under
consideration, and which by itself, or in connection with
evidence previously assembled, is so significant that it must
be considered in order to fairly decide the merits of the
claim. See 38 C.F.R. § 3.156(a) (1999); Hodge v. West, 155
F.3d 1356 (Fed. Cir. 1998). In determining whether evidence
is new and material, the "credibility of the evidence is to
be presumed." Justus v. Principi, 3 Vet. App. 510, 513
(1992).
As noted above, the Board remanded this case in September
1999, in part, to allow the RO to apprise the veteran of the
law and regulations concerning new and material evidence and
the reopening of claims. In an August 7, 2000 letter to the
veteran, the RO notified the veteran of these laws and
regulations. This letter suggests that the RO applied the
now invalidated "change in outcome" test for materiality
when it adjudicated the veteran's claim to reopen.
Consequently, the Board must consider whether the veteran
would be prejudiced if the Board were to proceed with
consideration of his claim under the standard of materiality
enunciated in Hodge without first having the RO apply that
standard. Cf. Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
In this regard, the Board notes that the RO notified the
veteran of the provisions of § 3.156(a) in a January 2001
supplemental statement of the case (SSOC). Thus, he has had
the opportunity to present evidence and argument with respect
to the standard set out in that subsection. The Board
concludes, therefore, that the veteran will in no way be
prejudiced by the Board's application of that subsection to
his claim at this stage of the appeal. This is especially so
in light of the Board's decision set forth herein to reopen
the claim.
Turning to the underlying question of whether the veteran's
claim should be reopened, the Board notes that the basis of
the August 1992 decision denying service connection was that
the evidence of record did not support a diagnosis of PTSD
resulting from the veteran's service in Vietnam. The
evidence of record at the time of that decision is
substantially as follows: (1) service medical records
showing no psychiatric complaints or treatment; (2) an August
1976 VA neuropsychiatric examination reflecting no
psychiatric disorders; (3) two April 1978 one-page medical
examination reports showing diagnoses of depressive neurosis
and chronic anxiety; (4) lay statements dated in April 1978
and August 1988; (5) treatment records from the North
Carolina Division of Mental Health dated in 1978, 1979, and
from 1983 to 1987; (6) two statements from Tong-Su Kim, M.D.
dated in February 1980 and July 1988; (7) a July 1988 report
of examination from W. Boyles, M.D.; (8) a VA examination of
November 1988 showing a diagnosis of PTSD; (9) VA
psychological evaluations of January 1989 and September 1990,
and VA examinations of February and March 1989, all showing
no diagnosis of PTSD; (10) a June 1990 VA neuropsychiatric
examination diagnosing dysthymic disorder with anxiety; and
(11) an independent medical expert's May 1992 opinion that
the evidence did not support a diagnosis of PTSD resulting
from the veteran's service in Vietnam.
Since that time, additional evidence has been associated with
the claims file. That evidence includes, in pertinent part,
Asheville, North Carolina VAMC records showing treatment for
PTSD in January 1995, May 1995, June 1995, January 1996,
April 1996, August 1996, November 1996, February 1997, May
1998, February 1999, and July 1999, apparently by the same
provider. In addition, there is a record of an Agent Orange
Registry, dated in April 1995, noting diagnoses of PTSD,
depression, and sleep disturbances since returning from
Vietnam. Reports of two VA psychological evaluations-one
dated in November 1995 and another in April 1998-performed
by Chris Sheaffer, Ph.D., Licensed Psychologist, were newly
associated with the record. One service department
operational report--lessons learned was also added to the
file since the August 1992 decision.
This newly associated evidence was not present in the file
prior to the August 1992 decision. Given that the only
diagnosis of PTSD previously of record was that rendered in
the course of a November 1988 VA examination, and inasmuch as
the newly associated evidence includes records of treatment
for PTSD over the course of a four-year period, it is not
cumulative or redundant of evidence previously of record.
Thus, the Board finds that the evidence is "new."
Given that the newly associated Asheville VAMC treatment
records show that the veteran was treated by a medical doctor
on an ongoing basis from 1995 to 1999 and was given a
diagnosis of PTSD, the evidence is material to the specific
matter under consideration in this case-namely, whether the
veteran has PTSD related to an in-service stressor. Thus,
the Board finds that the newly associated evidence bears
directly and substantially on a specific matter under
consideration in this claim. Further, the Board finds that
the evidence is so significant that it must be considered in
order to fairly decide the merits of the veteran's claim.
The oft-repeated assessment of PTSD made over a period of
about 4 years tends to strengthen the veteran's claim that he
indeed experiences PTSD, especially when considered in light
of what was proved in 1992. The application to reopen is
therefore granted.
ORDER
New and material evidence having been presented sufficient to
reopen a claim of service connection for PTSD, the appeal, to
this extent, is granted.
REMAND
The Board notes that on November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(Act), Pub. L. No. 106-475, 114 Stat. 2096, et seq. (2000)
which made significant changes in Veteran's law. These
changes are applicable to all claims filed on or after the
date of Act, or filed before the date of enactment and not
yet final as of that date. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 7(a), 114 Stat. 2096, 2099-2100
(2000); see also Holliday v. Principi, 14 Vet. App. 280
(2001). The Act requires that notice be provided to a
claimant as to what is required for a claim to be successful,
and may require multiple notices during the pendency of the
adjudication process. Holliday, at 289. In the case of
Holliday v. Principi, it was noted that the VA Secretary had
not promulgated implementing regulations, and that these
regulations might in fact provide more assistance than is
required by the Act itself. Id. Indeed, the Court noted
that, until such regulations were promulgated there remained
significant uncertainties regarding the kind of notice to be
given to each class of claimants, especially in light of the
Secretary's acknowledgment that the notification requirements
had universal application. Holliday, at 289-290. Given that
the Board must now address the merits of the veteran's claim,
and because the record suggests that further evidentiary
development is required under the Veterans Claims Assistance
Act of 2000, a remand is required.
Several documents of record suggest that the veteran was
hospitalized at the Salisbury VA facility in 1977 and
diagnosed with psychosis or PTSD. (See, e.g., the January
and May 1998 VA examination reports, April 1998 VA PTSD
evaluation report, a 1996 letter to Congressman Jesse Helms).
Of particular note, in this regard is the May 1995 medical
record of overall treatment plan from the Asheville VAMC,
reflecting that a diagnosis of PTSD was received from the
Salisbury VA while an inpatient there for four days in 1977.
In light of the new changes to the duty to assist and the
constructive notice accorded VA records, an additional
attempt should be made to obtain these records. See Bell v.
Derwinski, 2 Vet. App. 611 (1992).
In addition, the Board notes that while two VA
Psychological/PTSD evaluations-one in 1995 and one in 1998-
were performed by Dr. Sheaffer, neither of these explained
the other records which showed a contrary diagnosis. As
referenced above, the evidence includes VA medical records
reflecting treatment for PTSD at the Asheville VAMC on some
eleven occasions. Dr. Sheaffer's November 1995 report
reflects an overall assessment that the evidence is
insufficient to warrant a diagnosis of PTSD. Rather, her
report reflected diagnoses of depressive disorder not
otherwise specified and personality disorder not otherwise
specified. Dr. Sheaffer's April 1998 report presented an
examination not particularly suggestive of the presence of
PTSD. In that report it was noted that the veteran's MMPI
was elevated due to exaggerated responding, with the
resulting profile suggestive of general psychological
maladjustment. The report reflected scores so elevated that
it strongly suggested the presence of malingering rather than
PTSD. Neither report suggests that the evaluator had
reviewed the claims file, or the VA treatment records clearly
showing a diagnosis of PTSD. Thus, the reports do not
reconcile the differing diagnoses found in the VA treatment
records. Nor does the evaluator attempt to explain the
notations in the treatment plan of May 1995 suggesting that
this diagnosis may have been derived from the veteran's
report of a diagnosis of PTSD at the Salisbury VAMC in 1977,
for which we have no records. Clarification of these matters
would be especially helpful in resolving the claim,
especially because PTSD may have a delayed onset, even since
1992 when the claim was denied by the Board.
Additionally, the Board notes that the veteran's service
personnel record reflects that he was assigned as an
assistant gunner in the 7th Battalion, 9th Artillery,
Battery B when serving in Vietnam. He also served there as a
reconnaissance sergeant. In May 1990, the U.S. Army & Joint
Services Environmental Support Group responded to the RO with
a list of operational reports--lessons learned submitted
during 1967 by the 7th Battalion, 9th Artillery. That letter
reflects that the unit's area of operation was Bau Bang, An
Loc, and Tay Ninh. In addition, the letter states that the
reports reflect significant combat situations encountered by
the unit during certain times. While the letter recommends
requesting each of the operational reports, it is unclear
that these reports were requested. Further, only one such
record-submitted by the veteran-appears in the record.
To ensure that VA has met its duty to assist, the case is
REMANDED to the RO for the following:
1. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully
satisfied.
2. The RO should ask the veteran to
provide information regarding any
evidence of past or current treatment for
PTSD that has not already been made part
of the record, including treatment
records from the VAMC in Salisbury dated
in 1977, if any, and ensure that all
pertinent records of VA treatment have
been procured for review. Operational
reports should be obtained from the
service department as recommended in the
May 1990 letter from the U.S. Army &
Joint Services Environmental Support
Group. Other evidentiary development
necessary to corroborate the occurrence
of in-service stressors should be
undertaken as deemed necessary. The RO
should assist the veteran in obtaining
evidence by following the procedures set
forth in 38 C.F.R. § 3.159 (2000). If
records sought are not obtained, the RO
should notify the veteran of the records
that were not obtained, explain the
efforts taken to obtain them, and
describe further action to be taken.
3. After the above-requested development
has been completed, the veteran should be
afforded a VA examination, including a
clinical examination, by a psychiatrist
to determine whether the veteran meets
the DSM IV criteria for PTSD, and render
an opinion as to the medical probability
that any such PTSD is traceable to in-
service event(s). Psychological testing
should be accomplished. The claims
folder and a copy of this remand should
be made available to the examiner before
evaluation. All opinions should be
supported by the evidence of record and
the examiner should specifically refer to
the medical principles relied on in
forming any opinion. Opinions of record
that appear to conflict with the
examiner's conclusions should be
explained in the context of the record
and medical principles relating to the
psychiatric disease process.
4. The RO should ensure that the
examination report complies with this
remand, especially with respect to the
instructions to provide medical opinions.
If the report is insufficient, it should
be returned to the examiner for necessary
corrective action, as appropriate.
5. After the development requested above
has been completed, the RO should re-
adjudicate the claim. If the benefit
sought is denied, a SSOC should be
issued. The SSOC should contain, among
other things, a summary of the evidence
received since issuance of the January
2001 SSOC. 38 C.F.R. § 19.31 (2000).
After the veteran and his representative have been given an
opportunity to respond to the SSOC, the claims folder should
be returned to this Board for further appellate review. No
action is required of the veteran until he receives further
notice. The purpose of this remand is to comply with
governing adjudicative procedures. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition of the remanded issue. The appellant has the
right to submit additional evidence and argument on the
matter the Board has remanded to the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court. See
M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MARK F. HALSEY
Member, Board of Veterans' Appeals